Is abortion on Kansas ballot again? Judicial retention votes could determine future cases

The Kansas Supreme Court was front and center this summer as Kansans prepared to vote on a constitutional amendment aimed at overturning the court’s 2019 decision that found a right to an abortion in the Kansas Constitution.

Millions were spent on ads urging Kansans to take abortion policy out of the hands of “unelected liberal judges.”

The messaging failed.

Kansans voted overwhelmingly to keep abortion rights in the state constitution. But now six of the seven justices on the Kansas Supreme Court will stand for retention on the Nov. 8 ballot.

Historically, retention elections have been an opportunity for interest groups to seek the removal of judges for or in anticipation of decisions they don’t agree with. For example, relatives of victims and a group called Kansans for Justice campaigned against the retention of four justices in 2016 after the court vacated the death sentences of Jonathan and Reginald Carr, who killed five people in Wichita in 2000.

That effort did not succeed. But in the wake of the August vote former Gov. Sam Brownback pointed to a change in the court being the path forward for abortion opponents in the state.

“This is a democracy so you’ve got to work through the system,” Brownback said on an August prayer call hosted by the Wichita-based Culture Shield Network.

Even before the amendment’s failure, Wichita anti-abortion activist Donna Lippoldt said in July she planned to mobilize church leaders statewide to oppose retention.

Judicial conduct limits Kansas judges in what they can say to support their own retention but they are able to advocate generally for the independence of the court.

Justices Melissa Standridge and K.J. Wall spoke at the University of Kansas on Tuesday. They urged attendees to look at the full body of a judge’s work when making retention decisions rather than one issue.

“You shouldn’t be evaluating on the end result, you should be evaluating on whether or not the jurists are taking the rule of law,” Standridge said in an interview after the event.

They also explained benefits of Kansas’ current selection system, in which a panel of attorneys reviews applications and presents three options for the governor to pick from.

“We’re not elected, we’re appointed based on merit selection,” Wall said. “Whereas a legislator or a governor is really bound to some extent by their party platforms, but also as representatives they’re supposed to reflect popular will and represent the majority in their districts... We don’t take those things into account. Our decision making is driven singularly by what we call the rule of law.”

A formalized effort to oust the judges has not yet materialized. The Kansans for Life Political Action Committee intends to make recommendations but has not yet issued them.

But some Republicans have indicated quiet support for such a movement. At the Kansas State Fair Debate earlier this month, Kansas Attorney General and GOP gubernatorial nominee Derek Schmidt said he would vote to retain some judges but not all. He did not specify which judges he would oppose or why.

Chief Justice Marla Luckert, appointed by moderate Republican Gov. Bill Graves, and Justice Dan Biles, appointed by former Democratic Gov. Kathleen Sebelius, are up for retention this year. They’ll be joined by Democratic Gov. Laura Kelly’s three appointees, Standridge, Wall and Justice Evelyn Wilson. Justice Caleb Stegall, Brownback’s only appointee on the court, is also up for retention.

Meanwhile, efforts have formed to support retention. Retention efforts, unlike most political campaigns, are not subject to Kansas governmental ethics rules so the efforts form as private corporations.

Stegall has established his own retention effort. And former Justice Carol Beier is leading a group called “Keep Kansas Courts Impartial” and traveling the state alongside former Chief Justice Lawton Nuss to educate Kansans on the role of the court and encourage retention for all justices.

Beier, who won her own retention elections despite campaigns for her ouster in 2010 and 2016, said her work came in response to statements threatening to challenge the current justices.

“I think we need to be prepared to make sure that people are hearing those challenges and understanding them for what they are,” Beier said. “There are those who would like our court system and the judges who sit on the bench to be tools or vehicles to reach policy outcomes... That’s not the way courts are supposed to work. It’s not the way courts do work.”

Kansans for Constitutional Freedom, the primary vote group that campaigned against the anti-abortion amendment, said it would advocate to retain justices heading into November as a way to preserve its landslide victory for abortion rights.

“The same politicians and groups who tried to change the constitution to eliminate our rights want to take over the Kansas Supreme Court and try again,” the organization said in a statement.

If ousting justices in November doesn’t work, Brownback said last month Kansas should change the way it selects justices to direct election or a federal model with Senate confirmation. It’s a position he unsuccessfully advocated for during his tenure as governor.

Speaking to the Wichita Pachyderm club last week, former Kansas Secretary of State Kris Kobach, the Republican nominee for Kansas attorney general, pointed to Iowa as a model.

That state’s supreme court overturned a ruling establishing a right to an abortion this spring after a change in judicial selection.

“They decided to change the way Supreme Court justices are selected and then Republican governors slowly and quietly over the next years, 2019, 2020, 2021 and 2022 replaced the majority of the members of the Iowa Supreme Court,” Kobach said.

A change in selection procedure would take a constitutional amendment. An attempt to change to the federal model with Kansas Senate confirmation failed last year but state Rep. Stephanie Clayton, an Overland Park Democrat, said she views that as a larger threat than non-retention.

“Abortion rights and frankly all number of things in the Kansas constitution are under a great deal of threat,” Clayton said. “It is not a retention issue, it is an issue of judicial selection... All they have to do is just stack the courts and the easiest way to do that is either by going into a federal model or to direct partisan elections.”

The Wichita Eagle’s Chance Swaim contributed to this report